Lagos Lawyer, in Facebook discourse, raises 10 questions on suspending CJN by use of ex perte order, as others respond

A former Vice President II of the Nigerian Bar Association, Barrister Monday Onyekachi Ubani, has posed ten questions that he said Nigerians should ask on the use of experte order to suspend the Chief Justice of Nigeria.

The human rights lawyer made these known on his Facebook social media wall on Saturday to which a journalist, Prince Bashir Adefaka, and one Dcn Abiodun Adeoye responded.

Starting up the discourse, Ubani simplified the issues he raised by splitting them into bits, stating out when using ex parte order in doing so is allowed, the correctness of the procedure followed and then the ten questions began with a promise to address later when the use of experte order to suspend the CJN is not allowed.

“WHEN ALLOWED: Ex parte orders are allowed in a situation where getting an immediate order is urgent and unavoidable and mostly in situations where damages or injuries inflicted on the property or party seeking it will not be compensated monetarily. If given, it is usually temporarily. The judge who grants must always insist on full hearing, that is hearing all the parties within a short period of time. The essence of fair hearing is a fundamental rights enshrined in every constitutional democracy. For emphasis, ex parte orders are only allowed where getting an immediate order is urgent, really really urgent! Why this is so is because the order can be unfair and violate the due process requirement of every democratic constitution. Under the due process doctrine, both parties in every case must have the right to tell the court their own side of the story.

“The President of Nigeria, President Muhammed Buhari anchored his suspension order on the CJN upon an ex parte order of the Code of Conduct Tribunal allegedly granted on the 23rd of January, 2019. Neither the CJN nor his legal team was put on notice before this order that determined rights and liabilities was given. CAN THIS PROCEDURE BE REGARDED AS CORRECT? This ex parte order elicited these ten questions:

“1. I thought that the CCT sat on the 22nd of January and adjourned its sitting to the 28th of January, 2019? Why was the CJN not put on notice for this 23rd of January proceedings in the absence of any extreme urgency that warranted the hearing of the ex parte application?

2. What was this extreme urgency in the matter of the trial of the CJN that warranted this ex parte application and relief, more so, when the said application and relief is to achieve the same purpose the trial sought to accomplish?

3. Can one really use ex parte application in law to determine the rights and liabilities of a citizen, most importantly that of a Chief Justice of Nigeria without putting him on notice?

4. Is this ex parte order liable to be set aside as is known in all rules of court? Most importantly what is the duration of this ex parte order since every ex parte order has a life span?

5. Is there any provision in the constitution, Code of Conduct Bureau Act or any other rules of court used by the CCT that allows the CCT to use ex parte order to suspend, remove or punish any public officer who is facing trial before it without going through the entire trial process as prescribed by the Act?

6. Can this ex parte be valid when before it was granted the jurisdiction of the CCT has been challenged by the legal team of the CJN and which issue has not be determined by the same court as settled by plethora of Supreme Court authorities known as precedents?

7. Before this ex parte was granted, I thought there were several injunctive orders granted by superior courts of record restraining the CCT from going ahead with the hearing of the case involving the CJN before the CCT?

8. This ex parte was allegedly obtained on the 23rd of January, 2019 why was there no earlier report of its being granted by the court until the evening of 25th of January, 2019 when the President who was addressing the press exhibited the purported order signed by two out of the three members of the Tribunal?

9. Was this ex parte order obtained and dated the 23rd of January, 2019 to avoid a situation where it will be said that the order is illegal since the Court of Appeal has been seised of the matter since 24th of January and even made an interim order staying proceedings at the CCT? By dating it 23rd of January, 2019, CCT will likely absolve itself of any accusation of disobeying the order of the Court of Appeal! Clever move!

10. Under what law was the CJN, a head of another arm of government suspended by the President? Could it be under the 1999 constitution, or under the Code of Conduct Bureau Act, or under Interpretation Act, or under the Administration of Criminal Justice Act or perhaps under the Various Executive Orders signed before now by the President? The country is hungry to know MR PRESIDENT.

11. MORE QUESTIONS AND WHEN THE USE OF EX PARTE IS NOT ALLOWED LATER.

Responses:

Prince Bashir Adefaka: Barrister, Good morning Sir. I have difficulty going through all of the post because I just woke up and need to go and pray. I looked in because of respect I have for you.

Could you kindly tell us that you do not agree with all the issues raised in that address of the President suspending Onnoghen?

You are talking about all parties must take part. What do you say about Onnoghen, relying on influence he has on judges under him (all courts), arrogantly shunning appearance in court CCT?

Recall first he asked that summons be served on his PS on his behalf only for him to send his over 50 SANs to lie that he was not properly served. How do you handle this in law?

Two, recall also that Onnoghen again shunned CCT the date of sitting and didn’t give reason prior or after.

Lastly for now Sir, does it not bother you that people crying over this matter are people who are either undergoing corruption trials in courts or desperate opposition politicians?

I think these issues raised deserve an address.

When Ubani did not respond

In event that Barrister Ubani, author of the post did not respond to the Adefaka’s questions above, one interlocutor, Dcn Abiodun Adeoye waded in and addressed the Prince Bashir Adefaka in based on the last point in his comment which, invariably indicated that he agreed with the issues raised in the journalist’s comment earlier.

Dcn Abiodun Adeoye said: Prince Bashir Adefaka I take exception to your last point Sir. And just to add, the constitution can and should not be allowed to be subverted by anyone, irrespective of his position in government, particularly if the person had sworn on oath to uphold same. There is what is known as procedural jurisdiction in law if you care to know. The is issue of prosecuting the CJN has procedural implications as provided by the constitution. It can’t be substituted by opinions, sentiment or willful disregard to the rule of law under constitutional democracy.

Another response:

Prince Bashir Adefaka said: Thanks you, Dcn Abiodun Adeoye, for you comment. However, my comment, directed to author of this post, requires him to provide the answers that I require. He knows me so well and he knows that I am trying to get at these issues he has professionally so that I can best inform people who look up to me for information. HOWEVER, I am happy to note that your taking exception to my last point means that you agree with my early points. Now let’s go there; one after another. On the issue of not substituting the issue by opinions, sentiment or willful disregard to the rule of law under constitutional democracy, I will now ask you to find out from the position of Prof. Itse Sagay, which says “The provision is very clear. It states that where the Chief Justice is guilty of a breach of the code of conduct, he can be removed by an address of two-thirds majority of the Senate,” but that, “It is quite clear that the Senate itself cannot initiate that address; there is only one person who can do that and that is the President.” I am not a lawyer Sir but I know a little about every other discipline. Where do you place Prof. Sagay in Nigerian Law Practice? You need to clarify that to all of us first and then we continue.

Heavens won’t fall

In the meantime, more Nigerians have spoken, telling President Buhari that heavens would not fall taking the right decision against an allegedly corrupt Chief Justice of Nigeria who has been so arrogant to submit himself to the same law that he presides over as chief custodian.

Full Text of President Buhari’s Address suspending Onnoghen

ADDRESS BY HIS EXCELLENCY, MUHAMMADU BUHARI, PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA, ON THE SUSPENSION OF HONOURABLE JUSTICE WALTER NKANU SAMUEL ONNOGHEN AS CHIEF JUSTICE OF NIGERIA AND SWEARING IN OF ACTING CHIEF JUSTICE, 25TH JANUARY 2019

Fellow Nigerians,

A short while ago, I was served with an Order of the Code of Conduct Tribunal issued on Wednesday 23rd January 2019, directing the suspension of the Chief Justice of Nigeria, Honourable Justice Walter Nkanu Samuel Onnoghen from office pending final determination of the cases against him at the Code of Conduct Tribunal and several other fora relating to his alleged breach of the Code of Conduct for Public Officers.

2. The nation has been gripped by the tragic realities of no less a personality than the Chief Justice of Nigeria himself becoming the accused person in a corruption trial since details of the petition against him by a Civil Society Organization first became public about a fortnight ago.

3. Although the allegations in the petition are grievous enough in themselves, the security agencies have since then traced other suspicious transactions running into millions of dollars to the CJN’s personal accounts, all undeclared or improperly declared as required by law.

4. Perhaps more worrisome is the Chief Justice of Nigeria’s own written admission to the charges that he indeed failed to follow the spirit and letter of the law in declaring his assets, citing ’’mistake’’ and ’’forgetfulness’’ which are totally unknown to our laws as defences in the circumstances of his case.

5. One expected that with his moral authority so wounded, by these serious charges of corruption, more so by his own written admission, Mr. Justice Walter Onnoghen would have acted swiftly to spare our Judicial Arm further disrepute by removing himself from superintending over it while his trial lasted.

6. Unfortunately, he has not done so. Instead, the nation has been treated to the sordid spectacle of a judicial game of wits in which the Chief Justice of Nigeria and his legal team have made nonsense of the efforts of the Code of Conduct Tribunal to hear the allegation on merit and conclude the trial as quickly as possible considering the nature of the times in which we live.

7. Whether deliberately or inadvertently, we have all seen the full weight of the Chief Justice of Nigeria descend on the tender head of one of the organs of justice under his control. There is simply no way the officers of that court, from the Chairman to the bailiffs, can pretend to be unaffected by the influence of the leader of the Judiciary.

8. Not only the trial court, but others have been put on the spot. Practically every other day since his trial commenced, the nation has witnessed various courts granting orders and counter-orders in favour of the Chief Justice of Nigeria, all of them characterised by an unholy alacrity between the time of filing, hearing and delivery of judgment in same.

9. The real effect has been a stalling of the trial of Justice Onnoghen, helped along by lawyers who insist that these orders, whether right or wrong are technically valid, and must be obeyed till an appellate Court says otherwise. No doubt, that it is the proper interpretation, but is it the right disposition for our nation?

10. Nigeria is a constitutional democracy and no one must be, or be seen to be, above the law. Unfortunately, the drama around the trial of the Chief Justice of Nigeria has challenged that pillar of justice in the perception of the ordinary man on the street. For it is certain that no ordinary Nigerian can get the swift and special treatment Justice Onnoghen has enjoyed from his subordinates and privies in our Judicature.

11. In the midst of all these distracting events, the essential question of whether the accused CJN actually has a case to answer has been lost in the squabble over the form and nature of his trial. This should not be so.

12. If Justice cannot be done and clearly seen to be done, society itself is at risk of the most unimaginable chaos. As a Government, we cannot stand by wailing and wringing our hands helplessly but give our full backing and support to those brave elements within the Judiciary who act forthrightly, irrespective of who is involved.

13. As you are all aware, the fight against corruption is one of the tripod of policies promised to Nigerians by this administration. Needless to say that it is an existential Policy which must be given adequate attention and commitment by all the three arms of government. The efforts of the Executive will amount to nothing without the cooperation of the Legislature and especially the Judiciary.

14. It is no secret that this government is dissatisfied with the alarming rate in which the Supreme Court of Nigeria under the oversight of Justice Walter Onnoghen has serially set free, persons accused of the most dire acts of corruption, often on mere technicalities, and after quite a number of them have been convicted by the trial and appellate courts.

15. Since there is nothing the Executive Arm can do after the apex court of the land has spoken on any matter, several of these individuals walk free among us today, enjoying what are clearly the proceeds of the corruption which for so long has defeated the efforts of this nation to develop and prosper.

16. It is against this background that I have received the Order of the Code of Conduct Tribunal directing me to suspend the Chief Justice pending final determination of the cases against him. It also explains why I am not only complying immediately, but with some degree of relief for the battered sensibilities of ordinary Nigerians whose patience must have become severely over-taxed by these anomalies.

17. In line with this administration’s avowed respect for the Rule of Law, I have wholeheartedly obeyed the Order of the Code of Conduct Tribunal dated 23rd January 2019.

18. Accordingly, I hereby suspend the Honourable Mr. Justice Walter Nkanu Samuel Onnoghen, GCON as the Chief Justice of Nigeria pending final determination of the case against him at the Code of Conduct Tribunal.

19. In further compliance with the same Order of the Code of Conduct Tribunal, I hereby invite Honourable Justice Ibrahim Tanko Mohammed JSC, being the next most Senior Justice in the Supreme Court, to come forward to take the Judicial Oath as Chief Justice of Nigeria in an Acting Capacity.

20. Fellow Nigerians, we can only stand a chance to win the fight against Corruption, and position our dear nation for accelerated development when we stand together to contend against it.

Thank you and may God bless our country.